I am posting a PDF transcript from the the Fairholme status conference that took place on Wednesday 8/16/14. I am also pasting some key take aways and notes that were provided to us. I will be providing more analysis on this so watch for updates to this post. Keep the Faith!
Key takeaways and notes from this morning’s discovery status conference held in the Court of Federal Claims.
Serious discovery disputes remain and document production is likely to take at least another four months, with Plaintiffs having to file and brief a motion to compel production. The Court reiterated its view that the Government cannot hide behind privilege to prevent production of any documents showing that Fannie and Freddie acted at the Government’s behest in implementing the Third Amendment and the Net Worth Sweep.
The Plaintiffs brought forth three key discovery disputes, the most important of which is that the Government has refused to provide any documents in response to over half of the Plaintiffs’ discovery requests, including requests for communications between FHFA/Treasury and the boards of directors of the companies, arguing that these are outside of the substantive scope of the Court’s Discovery Order. The other two disputes are over the production of electronic discovery (ESI) search reports and the document production timeline, which the government now estimates will take four months to complete.
The Court said that it would not rule on these disputes without first receiving full written briefs. It asked the parties to negotiate to resolve the dispute. If no resolution is reached, Plaintiffs must file a motion to compel production, to which the Government will file a response brief and the Plaintiffs a reply before the Court issues an order.
Plaintiffs expect to file a motion to compel production within a week regarding the Government’s refusal to respond to certain discovery requests and to provide the ESI reports.
The Court also stated that it will issue an order shortly requiring the Parties to file a discovery completion date, which may be revisited if necessary.
Finally, the Court ended by issuing a stern warning to the Government that it must produce any documents showing that the Government controlled or coordinated with the Conservator in the implementation of the Third Amendment, and that it may not hide behind privilege in attempting to avoid producing these documents.
Status Conference Notes:
Plaintiff: Three problems will be addressed today. The most important is that the Govt. is not compliant with the Court’s July 16 order denying the Govt.’s motion for protective order. The Govt.’s non-compliance is categorical and wholesale. The Court ordered jurisdictional discovery in phases. The Court granted the Govt.’s request for temporal relief, particularly with regard to current information (post-net-worth sweep information), in phase one of discovery.
But the Court did order production of information with respect to two date ranges on future profitability and the end of the conservatorship.
On other request topics, the Court ordered production over a slightly elongated period of time.
The Govt. must give everything responsive within the ordered time period.
Court: Everything that is responsive.
Plaintiff: Yes. But the Govt. must also provide request log for this period.
Despite the Court’s order and its clear intent, the Govt. is taking position it has no obligation at all to respond to half of our document requests within the ordered date ranges.
For example, the central jurisdictional issue before the Court is whether FHFA is the United States for purposes of Tucker Act jurisdiction. The question is whether “FHFA was an agent and arm of the Govt.” This is a fact-specific inquiry and includes whether FHFA acted at the behest of Treasury. Our document request number 13 goes directly to the question of whether FHFA was acting as an agent or arm of Treasury when it agreed to maximize Treasury’s return on its Senior Preferred Stock through the net worth sweep, at the same time destroying the value of the shares of all other shareholders. The Govt. categorically refuses to respond to this request.
One more example is our request number 17, seeking any documents related to communications regarding the net worth sweep between FHFA and Treasury on the one hand, and Fannie and Freddie’s boards of directors on the other hand. These communications will be directly related to whether FHFA acted at the behest of Treasury or on behalf of other shareholders.
Court: Did they invoke executive privilege?
Plaintiff: No. And the order makes clear that they may invoke it, but must provide a log. As I understand their position, your order grants them this relief (from responding to these requests and others).
With respect to these particular requests and several other similar ones, the Govt. has said wholesale they do not have to respond at all.
Court: So far there have been no motions to compel filed articulating their litigating positions to the full extent. I have tried to address issues as best I could while avoiding such motions to compel. Sometimes sanctions arise from such motions, and I wanted to avoid that in this case. If we’re on that train, we are, and we’ll see if we arrive at the station. I don’t feel that having a full discussion regarding one party’s failure to respond to discovery in a status conference enables the court to render a complete ruling from the bench. I know you’re just giving me a peak at what’s coming. I’m not being critical of the parties.
Plaintiff: It did occur to me that this would require briefing, so we understand.
Court: I had offered early on that if a dispute arrives, please come to me. I think to have a full airing and to allow me to give the best ruling, I need to have issues properly briefed. I really need to know what you propounded and how they responded. It’s not as efficient to do so in a status conference, but it’s always good to hear what’s going on.
Govt.: I wonder if it would make sense for me to respond to Counsel’s previous statement before moving on. We do think the proper way to resolve this dispute with full briefing.
We had not heard the terms “categorical” and “wholesale” before this morning.
Court: I think it’s more efficient to let Mr. Cooper finish first, but I look forward to hearing what you have to say and will not be ruling this morning, but will probably just be setting briefing deadlines.
Plaintiff: The two other, more bite-sized concerns are, second, with respect to ESI hit reports. These are the reports that identify the number of hits that the search software in response to particular search terms. We and the Govt. used those initial hit reports as almost always used, to identify search terms that need to be narrowed or refine. The Govt. assured us until recently that we would be provided the hit reports with their production. This is standard procedure. We can’t find any case in which the Court upheld the claim that the hit reports need not be provided.
The Govt.’s refusal to provide these reports, which are critical to monitoring and understanding the scope of the provided production, is needed to know if questions need be asked.
The last issue is the production timetable. When we were last before you, the Govt. suggested it expected production to be completed within a month. Now, we have been told it will take another 4 months, which is 5 months from the Govt.’s initial 1-month prediction. So far, we have only received 1900 documents, of which only 15% are internal documents (the rest are publicly filed documents).
Court: I have not even entered a discovery scheduling order, which I would like to do. I like having end dates. I kept waiting to hear from the parties as to when I could put that in place. I suppose that can be the subject of an order so that I can put one in place.
Plaintiff: That is in large part our responsibility and we will help identify such appropriate dates.
Court: I had not entered an order with an end date yet because I was waiting to hear from you all, assuming suggested dates would be coming. An order will follow in the next few dates asking you for your respective views on dates.
Govt. rose to respond.
Govt: We had never heard this dispute described as “categorical” or “wholesale” non-compliance. Obviously we dispute this description. There is no dispute over the date ranges for production. We raised objections to the scope of the Plaintiff’s discovery requests in our motion for protective order. We note that the Court did incorporate both parties’ views in its second discovery order.
Court: It was a compromise incorporating some of what you had and pushed out some of the dates for Plaintiff. You are referring to Document 66 and the chart captioned “Government’s proposed scope of discovery.”
Govt: That is what we are going off of. First, regarding communication between FHFA and Treasury regarding maximizing return to taxpayers, the way we have interpreted the Court’s order regarding discovery is that it is limited whether FHFA acted at behest of Treasury is on the Third Amendment. We are interpreting the Order so that all communicative documents related to the funding agreements will be produced. We are not here to play games. We are interpreting these topics broadly, but there is a limit. Where the Plaintiff’s request goes beyond that, as we itemized in our motion for protective order, we continue to stick to those objections, and perhaps this is the subject of a motion to compel. Perhaps these are subjects that can be negotiated.
Court: As we all know, that is what the rules require. You must see if you can negotiate something. If not, I will be prepared to rule after I receive your briefs.
Govt: We are fine issuing status reports requiring the parties to lay out the subject of the status conference, but we ask that it not include the parties’ opinions.
Court: What if I require that the parties issue separate status reports identifying topics, and it is up to the parties to flesh out their views if they want.
Govt.: That’s fine, but if there’s an issue that will require a decision, it should be put in a motion.
Court: I agree and would not want the status reports to be so involved. I do not want citations or something like that, just something more than just saying ‘we want to talk about discovery.’ Rather than flying blind, I would like to know what I am going to see. If in two pages, you can just do a bullet point or nutshell giving me a little bit of the flavor of the dispute.
As a guiding principle, I am not looking for more than a sentence or two on each topic, and no back and forth.
It should be a joint report.
Govt.: With respect to the ESI reports that counsel raised, under the Federal Rules, discovery is limited to relevant and non-confidential material.
Court: It is commonplace to produce these reports.
Govt.: We have turned them over in reaching an agreement on search terms and custodians. Plaintiff has earned title to produced documents and privilege log, not reports that allow them to manage and monitor how we go about discovery. We believe Plaintiffs want oversight to which they are not entitled. These reports are complex, and we are concerned Plaintiffs will raise motions to compel based on these search terms and we will need experts to resolve disputes.
Court: Not on my watch. If Plaintiffs believe they have a legal argument under the rules to receive these reports, they will put it in their motion, you will respond, they will file a reply and I will rule.
Govt: We believe this is attorney work product that is protected.
Court: That is possible. The other cases with which I am familiar may have been different. I don’t know. In any event, those were other cases. It might be evidence the Justice Department has done it on occasion. It does not mean they are required to do so under the rules. I don’t have to decide that today.
Govt.: Lastly, with regard to the discovery schedule, the Court did direct the Parties to provide the Court with an obligated schedule.
Court: I will give you a couple of weeks to just give me an end date. It is a good housekeeping tool. I am happy revisiting it if necessary.
Govt.: We did just give Plaintiffs our estimate, but have not received an estimate back from Plaintiffs estimating how much time they will need for additional requests.
Court: I am not comfortable not having deadlines. It’s one of my case management tools. I will note the date is subject to being modified and I will happily change it.
Govt.: I do want to give the Court comfort that discovery is moving forward. We have provided our initial documents. Plaintiffs have made document requests directly to the GSEs. Both have responded to Plaintiffs. We expect one will produce more documents this week. The Plaintiffs are getting documents, many of which were requested from the Govt.
We intend to make our next document production next week and produce our first privilege log as early as next week.
We did agree with Plaintiffs on additional search terms and custodians, which did increase the number of documents we must review significantly, thus changing our time estimate. We are now estimating 4 months. We have added staff for document review.
Court: Is it correct that all of the documents that have been produced have been stamped “Confidential”?
Govt.: That is correct, to expedite production.
Court: And then you will go back and review and then withdraw the designation. So I see both sides: the concern that publicly available documents are designated confidential, but also that you are erring on the side of caution to expedite production.
Plaintiff rose to reply.
Plaintiff: My concern is not that documents have been stamped confidential, but rather that only 15% of the produced documents were initially non-public.
Court: But you have another 4 months to see many more documents. I hope that will satisfy you. You will see what comes and hopefully it will be responsive to your requests. If not, I know I will hear from you.
Plaintiff: The truth is you will hear from us much sooner. The process the Court established in April with its initial case management order made clear that when there was a discovery dispute, the parties would have to get together for 7 days, and after the objecting party would have to provide an objection. That is what we already went through.
As we read the Court’s discovery order, it accepted a lot of the Govt’s requests, but did not grant the Govt. relief from responding to over half of our requests.
We will bring these issues to you because these are serious questions that we will have to raise in a motion to compel to force the Govt. to describe how our requests are not directly related to the jurisdictional questions of whether the FHFA acted at the Treasury’s behest.
On ESI hit reports, we will have to add this to the motion to compel because producing the reports is standard practice, we are not aware of it being attorney work product, and its purpose is to monitor production and ensure the process is open.
We will bring forth a motion within a week’s time. I would hope the Govt. would be willing to respond very promptly, and I would suggest a week for response.
Court: I will allow the Govt. to have the appropriate time to respond under the Rules, and I will request that you attempt to negotiate resolutions to the disputes if possible as required under the rules. The whole purpose of this process is to allow the Plaintiffs to have their day in court and to allow them to discover whether the Govt. directed the Conservators to take certain actions, whether they were really the guiding force and therefore they were not independent, at least for the purposes of the Net Worth Sweep.
If the Conservators were taking their marching orders from within the US Government, regardless of the branch, or working in conjunction with them, that information must be brought forward. If this information must be confidential, then that information must still be provided to the Plaintiffs.
It’s not fair for the Govt. to say to the Plaintiffs that Fannie and Freddie are independent if there are documents showing that there was Govt. control.
I don’t want instructions being given to these entities saying they don’t have to turn over documents if this is what they say. Defendants cannot invoke privilege to prevent the Plaintiffs from entering the courtroom door. I know you know this, but you can go back and tell it to the clients.
If the dispute cannot be resolved, I will see motions.
I understand your respective positions. Please see if you can negotiate to narrow the issues.
8:13:14 transcript 717Fair